Commercial State Bank v. Boatman

Per Curiam: This action was brought by the appellee to set aside two deeds to properties in Yates Center which were caused by appellant’s husband to be made to her for the purpose, as alleged, of enabling him to defraud his creditors and especially the ap [667] pellee. There was evidence that for years the husband had been given credit by appellee as the owner of properties the title to which appeared to be in him on the records of the register of deeds; that he had borrowed from the appellee a part of the purchase price of one of the properties in question and that the borrowed money was used in such purchase; also that he had traded a farm which he held in his own name for city property in Iola, and that the appellant had traded that property for the other property involved in this action; also that after these conveyances to the appellant her husband had no property left. Thereafter the indebtedness of the husband to the appellee was converted into a judgment, execution issued thereon, delivered to the sheriff, and the sheriff returned thereon that no property of the husband’s could be found upon which to levy. It also appeared that some twenty or twenty-five years before the transfer the appellant had let her husband have, at different times, about two thousand dollars, but that she had taken no note for the same and made no contract for its repayment, but, as she testified, she just let him have it. As to one or two of the smaller items, she testified she loaned it to him. No account of the husband’s alleged indebtedness to the appellant is shown to have been taken between, them, at the time of the transfer, and no intelligible showing that the amount •of the alleged indebtedness to the wife was equal to or approximated the value of the property transferred was made at the time of the trial. The court was justified in believing from appellant’s own testimony that during the years she was giving him sums of her money she was doing so to aid him in his business, and that the relation of debtor "and creditor did not then exist. If such was the fact, he should not be permitted, as against his creditor, to give it back to her when insolvent, nor to cause his [668] property to be conveyed to her therefor. (Bailey v. Kansas Mfg. Co., 32 Kan. 73, 3 Pac. 756.) In Dresher v. Corson, Sheriff, &c., 23 Kan. 313, it was said: “We have repeatedly affirmed the right of the wife to purchase and hold separate property, real and personal, and whenever such right is exercised in good faith it is entitled to protection. But when property which is in the possession of and apparently belongs to the husband, and upon the faith of which he may properly havé received credit, is at the time of his financial embarrassment claimed to have been purchased by, and to belong to, the wife, courts may well require clear and convincing proof, not merely of the' fact, but also of the good faith of the purchase. Communications between husband and wife being privileged, the opportunity for fraud, if fraud is desired, is great, and searching inquiry is proper. When, pending a suit against him, a man of means transfers all his property, save that which is exempt, to his wife, and hires out to her for his ‘board, clothing and lodging,’ the transaction, to say the least, affords grounds for suspicion, and calls for satisfactory proof of good faith and fair consideration. Unless care is taken and courts are watchful, those laws which were designed for the protection of married women will become repulsive to the moral sense as mere covers for fraud.”' (p. 315.) The judgment is affirmed.